No. 89-257
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
STATE OF MONTANA, ex rel., FIRST
RANK SYSTEM, FIRST BANK WEST GREAT
FALLS, and JOHN REICHEL,
Relators,
-vs-
THE DISTRICT COURT OF THE EIGHTH
JUDICIAL DISTRICT OF THE STATE OF
MONTAbJA, IN AND FOR THE COUNTY OF
CASCADE, THE HONORABLE NAT ALLEN,
Presiding Judge, and ROBERT M.
PANC ICH ,
Respondents.
ORIGINAL PROCEEDING:
COUNSEL OF RECORD:
For Relators:
Stephen D . Bell & Keith Strong; Dnrsey & Whitney,
Billings, Montana
For Respondent:
Ralph L. Herriott, Billings, Montana
Walter M. Hennessey, Butte, Montana
~ i l l i a mL. Baillie, Great Falls, Montana
Gene B. Daly, Helena, Montana
Submitted: September 5, 1989
Decided: November 28, 1989
0
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
Relators First Bank System, First Rank West Great
Falls, and John Reichel seek a writ of supervisory control
from this Court following an order entered in the District
Court for the Eighth Judicial District, Cascade County. In
exercising our power of supervisory control, we vacate the
lower court's order and remand for further proceedings.
The issues presented for our review are:
1. Did the District Court err in granting summary
judgment in favor of plaintiff on the issue of liability?
2. Is supervisory control appropriate when the Dis-
trict Court granted summary judgment despite the presence of
numerous factual issues?
Relators are the named defendants in a civil action
brought by Robert Pancich, a former employee of First Bank
West Great Falls. First Bank System is the parent corpora-
tion of First Bank West, and John Reichel was the Managing
Director of the Western Montana Region of First Bank System
at the time pertinent to this lawsuit. Mr. Reichel had also
been elected a member of First Bank West's Board of
Directors.
The incident giving rise to the present controversy
occurred in 1983. In that year the Office of the Comptroller
of the Currency (OCC) investigated First Bank West Great
Falls and determined that it was engaged in "unsafe and
unsound" banking practices. An affidavit by Mr. Reichel
states that the deficiencies existing in the bank at that
time included "ineffectiveness of some existing management
personnel, high operating expenses, financial imbalance,
unnecessary expenses, and inefficient use of resources."
After the report by the OCC, on August 12, 1983, Mr. Reichel
terminated Mr. Pancich's employment as president of the bank.
Prior to termination, Mr. Reichel contacted four members of
the bank board, recommending that Mr. Pancich be terminated.
Six days later, on August 18, 1983, during a special meeting
of the board of directors, a new president was elected.
During a regular meeting of the board, on September 15, 1983,
the board unanimously accepted a letter of resignation from
Mr. Pancich.
The affidavit by Mr. Reichel states that of the bank's
board of directors, nine members were eligible to vote on
decisions involving employment termination, one of whom was
himself. Affidavits by the four members whom Mr. Reichel
contacted state that prior to the August 12 termination Mr.
Reichel discussed with them the need for a new president
because of the Bank's serious financial setbacks. The affi-
davit of each of these four members states, "I concluded and
agreed that Robert M. Pancich should be terminated from his
employment at the Bank.'' Affidavits by three other members
of the board state that prior to the termination, each of
these three individuals had formed the opinion that the bank
needed new leadership. All nine members of the board state
by affidavit that on August 18, 1983, each attended a special
meeting of the board during which each concurred in the
termination of Mr. Pancich. The affidavits further state
that at this meeting each member voted to elect a successor
to Mr. Pancich. These affidavits are uncontradicted.
Subsequently Mr. Pancich brought suit against the Bank,
its parent corporation and Mr. Reichel individually, allegina
wrongful termination and breach of an implied covenant of
good faith and fair dealing.
Initially defendants moved for summary judgment, which
was denied by the District Court. Following denial of this
motion, on December 7, 1987, defendants applied to this Court
for a writ of supervisory control which was denied on two
grounds: (1) t h a t t h e D i s t r i c t C o u r t ' s o r d e r d e n y i n g summary
judgment was interlocutory; and (2) that relators had an
a d e q u a t e remedy by a p p e a l from t h e f i n a l judgment. A year
later plaintiff moved f o r summary judgment on t h e i s s u e o f
liability. Plaintiff's m o t i o n was g r a n t e d by t h e D i s t r i c t
C o u r t w i t h o u t e x p l a n a t i o n o r accompanying memorandum. Defen-
d a n t s moved the lower court t o reconsider i t s order o r t o
certify to this Court pursuant to Rule 5 4 ( b ) , M.R.Civ.P.
T h i s m o t i o n a l s o was summarily d e n i e d . The D i s t r i c t C o u r t
t h e n s e t a d a t e f o r t r i a l on t h e i s s u e o f damages.
I
Did t h e D i s t r i c t C o u r t e r r i n g r a n t i n g summary judgment
i n f a v o r o f p l a i n t i f f on t h e i s s u e o f l i a b i l i t y ?
I n o u r a n a l y s i s , w e b e g i n by e m p h a s i z i n g t h a t summary
judgment i s o n l y a p p r o p r i a t e when t h e r e a r e no g e n u i n e i s s u e s
o f m a t e r i a l f a c t and t h e moving p a r t y i s e n t i t l e d t o judgment
a s a m a t t e r o f law. R u l e 56 ( c ) , M.R.Civ.P. Any i n f e r e n c e s
t o b e drawn from t h e f a c t u a l r e c o r d must b e r e s o l v e d i n f a v o r
o f t h e p a r t y o p p o s i n g summary judgment. Simmons v . Jenkins
( 1 9 8 8 ) , 750 P.2d 1 0 6 7 , 45 S t . R e p . 328.
Defendants contend that the court granted summary
judgment b a s e d on an i n c o r r e c t a s s u m p t i o n t h a t t h e d e n i a l o f
d e f e n d a n t s ' m o t i o n f o r summary judgment e n t i t l e d p l a i n t i f f t o
summary judgment i n h i s favor. Defendants' o r i g i n a l motion
f o r summary judgment was b a s e d upon t h e f a c t t h a t F i r s t Bank
W e s t i s a n a t i o n a l bank g o v e r n e d by t h e N a t i o n a l Bank A c t , 12
U.S.C. § 21, e t seq. Defendants' claimed t h a t t h i s s t a t u t e
p r e e m p t s s t a t e l a w , and t h a t p u r s u a n t t o 12 U.S.C. § 24(5), a
national banking association has the power to appoint a
president and to dismiss an officer "at pleasure." The
D i s t r i c t C o u r t d e n i e d d e f e n d a n t ' s m o t i o n by s i m p l y s t a t i n g :
IT IS ORDERED that said motion is overruled
and denied for the reason that a discharge is not
ratifiable by the board after defendants executed
the discharge of plaintiff and for the further
conflicts in the admissible evidence revealed in
defendants' Answers to Interrogatories #40, #SO,
#58, #70, #73, and #74, and others.
While we do not rule on this denial of summary judg-
ment, we point out that it contains neither a factual nor a
legal analysis. A year later plaintiff moved for summary
judgment on the issue of liability. In this motion plaintiff
contended that the court's denial of defendants' motion for
summary judgment entitled plaintiff to summary judgment in
his favor. Defendants contend that the court erroneously
granted plaintiff's motion on this basis. While we cannot
ascertain the court's reason for its decision, we do empha-
size that summary judgment is not a decision on the merits.
A denial of summary judgment is simply a decision that there
are factual issues. As stated by one authority:
[Tlhe denial of summary judgment does not
preclude either party from raising at
trial any of the issues dealt with on the
motion. This is because the denial of
summary judgment is not decision on the
merits; it simply is a decision that
there is a material factual issue to he
tried.
10 Wright, Miller & Kane, Federal Practice and Procedure,
S 2712 at p. 587. While the District Co.urtls determination
on defendants' motion for summary judgment was made a year
earlier, and is not binding on the present motion, we point
out that the District Court concluded that there were factual
disputes. If there were material factual disp,utes, neither
plaintiff nor defendant were entitled to summary judgment.
Defendants also contend that the court erroneously
granted summary judqment since genu-ine issues of material
fact remain as to each of plaintiff's allegations, and as to
defendants' affirmative defenses. In the petition for a writ
of supervisory control, defendants list the following as
issues involving factual determinations:
(a) Whether the court improperly removed from jury
consideration the issue of whether there was a
breach of an implied covenant of qood faith and
fair dealing when numerous affidavits described a
fair and honest reason for the discharge from
employment;
(b) Whether an alleqed failure to meet the re-
quirements of a federal preemption defense provides
grounds for summary ruling that the implied cove-
nant of good faith and fair dealing was breached or
wrongful discharge occurred;
(c) Whether mere discharge from employment, with-
out more, entitled respondent to summary iudgment
on the issue of liability for breach of implied
covenant of good faith and fair dealing;
(dl Whether denial of relators' summary judgment
motion, without more, entitled respondent to entry
of summary judgment;
(e) Whether the Bank's parent corporation is
subiect to liability for breach of implied cove-
nant, based on discharge of its subsidiary's em-
ployee, when respondent offered no proof that the
corporate form was used as a subterfuge to perpe-
trate fraud, justify wrong, or defeat public
convenience;
(f) Whether a director of a corporation is subject
to personal liability when his acts were clearly
taken in furtherance of corporate purpose.
In reviewing the applicable law, we emphasize the
following standards. The covenant of good faith and fair
dealing does not arise unless the employee has been given
objective manifestations of job security. Dare v. Montana
Petroleum Marketing Co. (1984), 212 Mont. 274, 687 P.2d 1 0 1 5 .
Even if the covenant is implied in the relationship, it is
not breached if the employer had a fair and honest or legiti-
mate business reason for the discharge. Barrett v. ASARCO,
Inc. (Mont. 1988), 763 P.2d 27, 45 St.Rep. 1865.
In the present case defendants claim that Mr. Pancich
was an at-will employee in that he had no objective manifes-
tations of continued employment. They allege therefore that
the covenant of good faith and fair dealing may not even
apply to the termination. Additionally, the uncontradicted
affidavits identify the OCC's determination that the bank was
engaged in unsound banking practices as a fair and honest
business reason for the discharge. The District Court had
these affidavits for review prior to granting summary judg-
ment. The affidavits clearly raise genuine issues of materi-
al fact. Further, the District Court had reviewed
interrogatories and had expressly stated that there were
conflicts in the evidence. It is clear that plaintiff estab-
lished no basis from which the court could conclude that as a
matter of law Mr. Pancich was wrongfully discharged and the
covenant was breached. We conclude that genuine issues of
material fact exist relative to the issues of wrongful dis-
charge and breach of the covenant of good faith and fair
dealing, precluding summary judgment.
Additionally, there remain genuine issues of material
fact regarding defendants' affirmative defense that the
Banking Act insulates them from liability. Through uncon-
tested affidavits, defendants present evidence supporting
their position that the termination of Mr. Pancich had prior
authorization by the board. They also present facts indicat-
ing that the termination was ratified by the board, both at
the special meeting of August 18 where a new president was
elected, and again at the September 15 meeting where each
member voted to accept Mr. Pancich's letter of resiqnation.
Although plaintiff contends that Mr. Reichel did not have the
authority to discharge Mr. Pancich, the plaintiff failed to
support this contention by affidavit or otherwise.
In response to Justice Sheehy's dissent, we note that
while defendants do argue that cases interpreting the Ranking
Act would allow them this defense, we conclude that this is
simply one more area in which issues of fact remain. We
further point out that whether discharge "at pleasure" is
available to defendants is only relevant to one of their
defenses. Even if it were determined that the discharge was
not authorized, or that ratification was not effective, this
does not establish liability. It only eliminates that par-
ticular defense. The issue presently before this Court is
only whether summary judgment against all defendants on the
issue of liability was proper. The argument in regard to the
Banking Act does not dispose of that issue.
We also agree with defendants' contention that plain-
tiff has failed to present facts from which it may be con-
cluded that, as a matter of law, the parent corporation of
First Bank West is liable for breach of the covenant of good
faith and fair dealing, or that Mr. Reichel is personally
liable in this suit. Meridian Minerals Co. v. Nicor Miner-
als, Inc. (1987), 228 Mont. 274, 742 P.2d 456, (parent corpo-
ration not a participant in action of subsidiary unless
corporate form is used as subterfuge); Bottrell v. American
Bank (1989), 773 P.2d 694, 46 St.Rep. 561, (actions of bank
officers protected by corporate shield from personal liabili-
ty). Genuine issues of material fact remain on these issues.
Because of the numerous genuine issues of material fact
on each of the above issues, we conclude that the District
Court's grant of summary judgment was manifestly incorrect.
Is supervisory control a p p r o p r i a t e when the District
C o u r t g r a n t e d summary judgment i n f a v o r o f P l a i n t i f f d e s p i t e
t h e p r e s e n c e o f numerous f a c t u a l i s s u e s ?
This Court discussed t h e r o l e of s.upervisory c o n t r o l i n
S t a t e ex re1 W h i t e s i d e v . District Court ( 1 9 0 0 ) , 2 4 Mont.
539, 562-63, 63 P. 395, 400, a s f o l l o w s :
I t h a s i t s own a p p r o p r i a t e f u n c t i o n s , a n d , w i t h o u t
undertaking t o d e f i n e p a r t i c u l a r l y what these
f u n c t i o n s a r e , w e t h i n k one o f them i s t o e n a b l e
t h i s c o u r t t o c o n t r o l t h e course of l i t i g a t i o n i n
t h e i n f e r i o r c o u r t s where t h o s e c o u r t s a r e p r o c e e d -
i n g w i t h i n t h e i r j u r i s d i c t i o n , b u t by a m i s t a k e o f
law, o r w i l l f u l d i s r e g a r d o f it, a r e doing a g r o s s
i n j u s t i c e , and t h e r e i s no a p p e a l , o r t h e remedy by
appeal i s inadequate. Under s u c h c i r c u m s t a n c e s ,
t h e c a s e b e i n g e x i g e n t , no r e l i e f c o u l d h e g r a n t e d
u n d e r t h e o t h e r powers o f t h i s C o u r t , and a d e n i a l
o f a s p e e d y remedy wo.uld b e t a n t a m o u n t t o a d e n i a l
of justice. C a s e s may a r i s e a l s o where some r e l i e f
c o u l d b e g r a n t e d u n d e r some one o f t h e o t h e r o r i g i -
n a l w r i t s named, b u t s u c h r e l i e f would n o t be
c o m p l e t e and a d e q u a t e b e c a u s e o f some e r r o r which
c o u l d n o t b e c o r r e c t e d by means o f t h e l i m i t e d
f u n c t i o n s o f t h e p a r t i c u l a r w r i t , while t h e super-
v i s o r y power i s u n l i m i t e d i n t h e means a t o u r
disposal f o r its appropriate exercise.
T h i s C o u r t may a c c e p t s u p e r v i s o r y c o n t r o l p u r s u a n t t o
R u l e 1 7 , M.R.App.P., when due a p p e a l i s a n i n a d e q u a t e remedy.
In applying t h i s s t a n d a r d w e have r e p e a t e d l y s t a t e d t h a t a
w r i t may i s s u e t o p r e v e n t e x t e n d e d and n e e d l e s s l i t i g a t i o n :
. . . This Court w i l l nonetheless accept j u r i s d i c -
t i o n t o p r o t e c t F i r s t Bank from p a r t i c i p a t i n g i n
n e e d l e s s l i g i g a t i o n , a p u r p o s e f o r which a w r i t o f
supervisory c o n t r o l i s intended: . . .
" it i s i n
t h e n a t u r e o f a summary a p p e a l - - a shortcut--to
control the course of l i t i g a t i o n i n t h e t r i a l court
. . . and may b e employed t o p r e v e n t e x t e n d e d and
needless l i t i g a t i o n . " (Citations omitted.)
First Bank v. Fourth ~udicialDist. Court (1987), 227 Mont.
515, 519, 737 P.2d 1132, 1134.
We also issued the writ in Continental Oil v. Elks Nat.
Foundation (Mont. 1989), 767 P.2d 1324, 46 St.Rep. 121, to
correct a partial summary judgment order, and in Great West-
ern Sugar Co. v. District Court (1980), 188 Mont. 1, 778
P.2d. 272, the writ issued to prevent needless litigation
where the district court had refused to dismiss a defendant
whose affirmative defense clearly allowed dismissal.
Appellate review of an interlocutory order by the
district court is not favored because of this Court's reluc-
tance to intervene in district court decisions and because
there normally is an adequate remedy by appeal, State ex rel.
Guar. Ins. v. District Court (Mont. 1981), 634 P.2d 648, 38
St.Rep. 1682. However, issuance of an extraordinary writ is
discretionary, 16 Wright, Miller and Kane, Federal Practice
and Procedure, 5 3932 at p. 187, and this Court has previous-
ly accepted review in an appropriate case. - - State
See, e.g.,
ex rel. Burlington Northern v. Dist. Ct. (Mont. 1989), 779
P.2d 885, 46 St.Rep. 1625 (writ issued because an order
placed a party at a significant disadvantage in litigating
the merits of a case); ~ u i p e rv. Dist. Court of Eighth Judi-
cial Dist. (Mont. 1981), 632 P.2d 694, 38 St.Rep. 1288 (writ
issued to determine whether district court properly granted a
protective order) ; Jaap v. District Court of Eighth Judicial
Dist. (Mont. 1981), 623 P.2d 1389, 38 St.Rep. 280 (writ
issued where district court exceeded its jurisdiction by
allowing defendant's attorney to privately interview plain-
tiff's physicians). A case by case analysis must be employed
in determining whether supervisory control should be accept-
ed. State ex rel. Deere and Co. v. District Court (1986),
224 Mont.. 384, 730 P.2d 396.
The record here establishes genuine issues of material
fact regarding the liability of each of three separate defen-
dants. It is premature to allow a trial on damages as to any
one or all three of the defendants under that circumstance.
Such a trial on damages becomes needless and expensive liti-
gation. The attendant publicity of such a trial on damages
and its adverse effect upon defendants is not easily calcu-
lated. We conclude that the order of the District Court was
was manifestly incorrect and created problems sufficiently
burdensome to the defendants to require this Court to take
supervisory control. We conclude that supervisory control is
appropriate to prevent needless and potentially damaging
litigation. We vacate the District Court's order of summary
judgment and remand for further proceedings consistent with
this opinion.
We Concur: H
,
/ ' 1 I r 7-
Hdnorable Henry-le, Re-
Harrison
Justice R. C. McDonough dissenting.
I would deny the writ. Relators here have an adequate
remedy by appeal. 1
@ %d z 7
& z 4d d Justice
Justice John C. Sheehy, dissenting:
The first mistake of the majority is its unwarranted
interference with the ~istrict Court's interlocutory order
for which, if wrong, there is a complete and speedy remedy by
appeal. The second mistake of the majority is, having
determined to interfere, the members have failed to interpret
properly the applicable law relating to the discharcre of a
bank officer. Had they properly interpreted the law, they
had then discovered that there was no genuine issue of
material fact before the District Court.
It should have piqued the interest of the majority that
in all of the briefs filed by the banks, there is not a
single whisper of contention that Pancich was an at-will
employee.
It should further have piqued the interest of the
majority that in all of the briefs filed by the banks, there
is not a single reference to federal law or federal cases
bearing on the discharge of a bank officer, although in this
case the banks involved are national associations.
Had their interest been piqued, they should first have
looked at the provisions of 12 U.S.C. § 24, which relates to
the discharge of bank officers. The statute provides that a
national bank has the power:
FIFTH. To elect or appoint directors, and by its
board of directors to appoint a president, v z
presideyt, cashier, and other officers, define
their duties, require bonds of them and fix the
penalty thereof, -dismiss such officers or any of
- -at pleasure, and appoint others t o fill in
them
their places. (Emphasis added.)
The effect of 12 U.S.C. § 24 was discussed in McWhorter
v. First Interstate Bank (0r.App. 1986), 724 P.2d 877, 879,
wherein it was contended that the president of a national
bank had authority to dismiss a bank officer. The Oregon
court said:
The difficulty with defendant's argument is that we
are concerned here with the delegation of a
specific statutory duty, not simply with the
managerial powers that normally accompany a general
conferral of authority in the articles or bylaws of
a corporation. Section 24 (Fifth) explicitly
confers the responsibility for the hiring and
dismissal of officers on the board of directors.
Other provisions of the national banking laws make
it clear that Congress knows how to manifest its
intent about what powers are exercisable only by
the board and what powers may be exercised by
subordinate entities. -.See, e.g. 12 U.S.C. 5 24
(Seventh) ("board of directors or duly authorized
officer or agents").
We consider that premise to be incorrect, because
the authority to hire and fire the officers of
national banks is not simply a matter of corporate
organization; it is a matter which Congress has
deemed sufficiently important to regulate by
statute and to entrust to the highest decision
making entity in the corporate structure . . .
In Mahoney v. Crocker Nat'l Bank (N.~ist.cal, 1983), 571
F.Supp. 287, discharged national bank officers brought suit
against the bank based on the federal Age ~iscriminationin
Employment Act. The bank sought to interpose the defense
that because it was a national bank, its bank officers served
at pleasure under the National an king Act, 12 U.S.C.,
section 24. The appeals court held that because the
plaintiff bank officers had not been discharged by the bank's
board of directions, nor by an officer empowered by the
by-laws to discharge bank officers, the defense of at-will
employment was not available to the bank, since the dismissal
of the bank officers was not done in a manner authorized by
the National ank king Act, 12 U.S.C., section 24. Mahoney,
571 F.Supp. at 290-291.
In this case, one member of the majority has concluded
that because in Mahoney the bank sought to use the National
Banking Act in defense, the provisions of the Act are
available only to banks as a defense, and that plaintiffs
cannot rely on those same provisions to prove an improper
discharge. On that basis the member of the majority refuses
to acknowledge the right of a discharged bank officer to rely
on the procedures established by Congress for the hiring and
firing of bank officers in 12 U.S.C., section 24, saying the
Act is only available to a bank as a matter of defense.
There is no way for me to explain that rationale: Clearly,
it seems to me, while it is true that under the National
ank king Act, a bank officer is an at-will employee, under the
same Act, his dismissal can only be by the board of directors
in concert, or by someone authorized in the by-laws to
dismiss the bank officer. Any other kind of dismissal is
against law and gives rise to liability.
In this case, the discharge of ~ a n c i c h was by John
Reichel, and not by the board of directors. Attempt was made
by the bank to show that the board of directors ratified the
discharge. Under the cases, they are not helped by that
attempt. It is old law and undisputed to this date that the
assent of the individual members of the board, acting
separately and singly, and not when acting as a unit, is not
the assent of the bank, and is not binding on the bank.
~ i r s tNat. Bank v. Drake (Kan. 1886), 11 P. 445, 447. In
~iskotoni v. ~ichigan Nat. Rank-West (6th ~ i r .1983) , 716,
F.2d 378, 387, the federal court held that an attempt by the
board of directors to ratify the president's action in
terminating an officer did not satisfy the statutory
requirement that officers of a national bank be dismissed by
an action of the bank's board of directors. Ratification
therefore is impossible. The Oregon court recognized the
authority of ~iskotoniand refused to recognize an attempted
ratification of a discharge by the board of directors after
the fact. McWhorter v. ~ i r s tInterstate Bank (0r.App. 1986),
724 P.2d 877, 879. In the light of those decisions and the
plain statutory language of 12 U.S.C. $ 24 (~ifth), the
~istrictCourt was eminently correct in holding:
IT IS ORDERED that said motion is overruled and
denied for the reason that a discharge is not
ratifiable by the board after defendants executed
the discharge of plaintiff . . .
There is no legal requirement that a district court in
ordering summary judgment should express reasons or give a
legal analysis as referred to in the majority opinion. We
have suggested that such be done but if the district court
does not do so, this Court is not excused from its duty to
examine the law to determine if the summary judgment is
proper. In this case, an examination of the applicable law
shows that the order of the district court was correct.
The legal situation in this case boils down to this:
John Reichel, as the regional managing director of the
western Montana region of First Bank System, or as a director
of the bank, in discharging Robert M. Pancich from the
presidency of ~ i r s tBank West, Great Falls, acted completely
against a Congressional statute. It is not relevant in this
situation that First Bank West might otherwise have had good
cause to discharge the president. If it had such cause, it
could only act through its board of directors. Reichel
plainly tortiously interfered with the contractual relation
between Pancich and his bank. A violation of a federal
statute with respect to discharge is certainly a breach of
the implied covenant of good faith and fair dealing---if
expected compliance with federal statutes is not inherent in
a national bank officer, what importance can we attach to
mere personnel brochures upon which we have previously
supported implied covenants? Public policy ordained by
Congress through its national banking laws requires that an
officer be discharged only by the board of directors of a
national bank. When public policy has been violated in
connection with a wrongful discharge, a cause of action
arises. Keneally v. Orgain (1980), 186 Mont. 1, 5-6, 606
P.2d 127, 129.
Moreover, there is no basis for the contention that John
Reichel has no personal liability in this matter. He is the
person who violated the congressional statute. Under the
National Banking Act he had no authority to remove Pancich as
a bank officer. The order of the District Court fixing
liability for a wrongful discharge upon the defendant Reichel
was eminently proper in this case.
There is further no basis to contend that a question of
fact exists as to the liability of First Bank System. In
discharging ~ancich, ~eichel was acting as the agent of ~ i r s t
Bank System. A corporation is liable for the wrongful acts
of its agents when the agents are acting in the course and
scope of their employment. ~ i r s tBank System is responsible
for Reichel's wrongful acts.
The foregoing applicable law convinces me that there is
no genuine issue of material fact as to the liability of the
defendants and that the ~istrict Court properly ordered
summary judgment on that point. Even if I were not so
convinced, however, I would still not grant supervisory
control because such action is a plain interference with the
District Court proceedings from which there is complete,
adequate and speedy remedy by appeal. The majority cites a
number of cases in which we granted summary judgment but that
simply glosses over what is occurring here, a direct
interloping into the district court process on improvident
grounds. I am outraged at the effect on the ~istrictCourt
proceedings. The District Court, after granting partial
summary judgment had fixed trial of the cause for September
29, 1989. This Court vacated that trial setting, acting
through its majority. In their exorbitant worry over
"needless and expensive litigation" and "attendant publicity"
the majority here have made the district court trials more
expensive and burdensome, and necessarily increased the
expense of the litigation--quite needlessly, in view of the
law. The same thing happened recently in State ex rel.
Burlington Northern v. ~istrictCourt (Mont. 1989) , - P.2d
, 46 St.Rep. 1625. There, an injured railroad worker
lost his trial setting by the action of this Court. It is
too late to rectify the loss of a trial setting in the case
at bar but we should at least refuse supervisory control.
Justice William E. Hunt, Sr.:
I concur in the dissent of Justice Sheehy.